Executive Briefings

Indie Truckers Can't Serve the Port of L.A.? Never Mind

Score a victory for common sense. The Port of Los Angeles - with the International Brotherhood of Teamsters lurking in the wings - has failed in its effort to ban independent drayage truckers from serving its docks. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has struck down the so-called employer mandate provision of the port's Clean Truck Program. And L.A. says it won't appeal the decision.

The original idea behind the Clean Truck Program, developed jointly with the neighboring Port of Long Beach, was a sensible one. Many of the trucks hauling containers to and from Southern California docks were old, unsafe and dirty. The ports wanted to bring them up to modern-day standards - specifically, to the 2007 emissions guidelines of the U.S. Environmental Protection Agency. The program mandated a phase-out of the older vehicles, while providing financial assistance to truck owners so that they could make the necessary purchases.

Somewhere along the line, however, the program went off the rails. Motivated, perhaps, by forces at City Hall, the Port of Los Angeles decided to add a requirement that all local truckers be employed by companies that had secured a concession to serve the docks. In other words, owner-operators were to be cut out of the picture. The port argued that only established trucking companies could possibly have the financial wherewithal to maintain the new safety and environmental standards. (Despite the fact that the program was designed to help owner-operators do just that.)

The move was a clear violation of federal law, which prevents localities from interfering with interstate commerce. Clear, that is, to most everyone but the Port of Los Angeles. It claimed the status of a "market participant," granting it preemption from federal statutes. Never mind that L.A. is a landlord port with no direct control over any aspect of operations at the piers. Legal terms can be wonderfully vague and open to debate.

The real driver behind this irrational campaign was the Teamsters, which saw fresh opportunities for recruitment among the trucking companies holding operating concessions at the massive Port of Los Angeles. (The union is prohibited by law from organizing independent operators.) And so a good, simple idea became needlessly complicated, with months wasted in legal wrangling.

Expectations were that the losing side would appeal the decision either to a larger, "en banc" panel of the Ninth Circuit, or to the U.S. Supreme Court. That turned out not to be the case, at least for the Port of Los Angeles. Spokesman Phillip Sanfield said the L.A. Board of Harbor Commissioners, following a closed meeting, "decided not to seek any further legal review. We're done with any appeals." A similar statement was issued by L.A. Mayor Antonio Villaraigosa, whose union constituents can't be happy with the decision.

The port, however, declares itself pleased that most aspects of the Clean Truck Program have been upheld by the courts, including some controversial provisions for monitoring truckers' financial health, maintenance records, placarding and parking habits. And the ruling in no way undermines the efficacy of the program; the Port of Long Beach has done fine without attempting to impose its own employer mandate.

The American Trucking Associations, which led the legal fight against the mandate, hailed the Ninth Circuit decision, calling it "a decisive victory for the trucking industry and consumers." ATA president and chief executive officer Bill Graves said the court's ruling ensured "that competition, not government regulation, will establish motor carriers' rates, routes and services."

Curiously, ATA might not be done fighting. According to Curtis Whalen, executive director of ATA's Intermodal Conference, the organization has decided not to seek an en banc hearing before the Ninth Circuit. It has not, however, ruled out the possibility of an appeal to the Supreme Court, on those few elements of port control that were upheld by the judges.

Whalen argues that the provisions on financial stability, maintenance, parking and placarding are still examples of the port overstepping its authority. By letting them stand unchallenged, ATA fears, a precedent would be set in favor of the right of localities to meddle in interstate commerce. "It certainly keeps the door open for that kind of mischief," he says.

ATA has 90 days from the September decision in which to decide whether to pursue an appeal before the Supreme Court. Whalen says it must weigh the strength of its position against the willingness of the nine justices to take up the case. "It's a lengthy process," he says.

There is, of course, the larger issue of whether ATA should reopen this particular can of worms. Huge amounts of money and legal firepower have been expended on the issue, and for all practical purposes, independent truckers have won. So why not just accept the victory?

Accept, maybe - but with a watchful eye toward future attempts by the Teamsters and others to assert local power over ports. Whalen is heartened by the fact that most clean truck programs being implemented at other ports do not have a concession system or employer mandate like the one attempted by Los Angeles. New York/New Jersey, South Carolina, Massachusetts, Seattle and Tacoma have all moved ahead without attempting to restrict truckers' right to work. The Port of Oakland is the "most logical" one to try it, Whalen says, but has yet to put anything of the sort in place. And a proposed bill to exempt ports from interstate commerce laws has little chance of passing Congress anytime soon, according to Whalen.

Still, it pays to remain vigilant. The Teamsters are "rattling the sabers" at the state level, Whalen says, and court battles continue to be fought here and there. In New Jersey, the activities of motor carriers are specifically dictated by state law, a precedent that union leaders would love to apply nationwide. Warns Whalen: "I believe they will not quit their efforts." So watch out.

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Score a victory for common sense. The Port of Los Angeles - with the International Brotherhood of Teamsters lurking in the wings - has failed in its effort to ban independent drayage truckers from serving its docks. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has struck down the so-called employer mandate provision of the port's Clean Truck Program. And L.A. says it won't appeal the decision.

The original idea behind the Clean Truck Program, developed jointly with the neighboring Port of Long Beach, was a sensible one. Many of the trucks hauling containers to and from Southern California docks were old, unsafe and dirty. The ports wanted to bring them up to modern-day standards - specifically, to the 2007 emissions guidelines of the U.S. Environmental Protection Agency. The program mandated a phase-out of the older vehicles, while providing financial assistance to truck owners so that they could make the necessary purchases.

Somewhere along the line, however, the program went off the rails. Motivated, perhaps, by forces at City Hall, the Port of Los Angeles decided to add a requirement that all local truckers be employed by companies that had secured a concession to serve the docks. In other words, owner-operators were to be cut out of the picture. The port argued that only established trucking companies could possibly have the financial wherewithal to maintain the new safety and environmental standards. (Despite the fact that the program was designed to help owner-operators do just that.)

The move was a clear violation of federal law, which prevents localities from interfering with interstate commerce. Clear, that is, to most everyone but the Port of Los Angeles. It claimed the status of a "market participant," granting it preemption from federal statutes. Never mind that L.A. is a landlord port with no direct control over any aspect of operations at the piers. Legal terms can be wonderfully vague and open to debate.

The real driver behind this irrational campaign was the Teamsters, which saw fresh opportunities for recruitment among the trucking companies holding operating concessions at the massive Port of Los Angeles. (The union is prohibited by law from organizing independent operators.) And so a good, simple idea became needlessly complicated, with months wasted in legal wrangling.

Expectations were that the losing side would appeal the decision either to a larger, "en banc" panel of the Ninth Circuit, or to the U.S. Supreme Court. That turned out not to be the case, at least for the Port of Los Angeles. Spokesman Phillip Sanfield said the L.A. Board of Harbor Commissioners, following a closed meeting, "decided not to seek any further legal review. We're done with any appeals." A similar statement was issued by L.A. Mayor Antonio Villaraigosa, whose union constituents can't be happy with the decision.

The port, however, declares itself pleased that most aspects of the Clean Truck Program have been upheld by the courts, including some controversial provisions for monitoring truckers' financial health, maintenance records, placarding and parking habits. And the ruling in no way undermines the efficacy of the program; the Port of Long Beach has done fine without attempting to impose its own employer mandate.

The American Trucking Associations, which led the legal fight against the mandate, hailed the Ninth Circuit decision, calling it "a decisive victory for the trucking industry and consumers." ATA president and chief executive officer Bill Graves said the court's ruling ensured "that competition, not government regulation, will establish motor carriers' rates, routes and services."

Curiously, ATA might not be done fighting. According to Curtis Whalen, executive director of ATA's Intermodal Conference, the organization has decided not to seek an en banc hearing before the Ninth Circuit. It has not, however, ruled out the possibility of an appeal to the Supreme Court, on those few elements of port control that were upheld by the judges.

Whalen argues that the provisions on financial stability, maintenance, parking and placarding are still examples of the port overstepping its authority. By letting them stand unchallenged, ATA fears, a precedent would be set in favor of the right of localities to meddle in interstate commerce. "It certainly keeps the door open for that kind of mischief," he says.

ATA has 90 days from the September decision in which to decide whether to pursue an appeal before the Supreme Court. Whalen says it must weigh the strength of its position against the willingness of the nine justices to take up the case. "It's a lengthy process," he says.

There is, of course, the larger issue of whether ATA should reopen this particular can of worms. Huge amounts of money and legal firepower have been expended on the issue, and for all practical purposes, independent truckers have won. So why not just accept the victory?

Accept, maybe - but with a watchful eye toward future attempts by the Teamsters and others to assert local power over ports. Whalen is heartened by the fact that most clean truck programs being implemented at other ports do not have a concession system or employer mandate like the one attempted by Los Angeles. New York/New Jersey, South Carolina, Massachusetts, Seattle and Tacoma have all moved ahead without attempting to restrict truckers' right to work. The Port of Oakland is the "most logical" one to try it, Whalen says, but has yet to put anything of the sort in place. And a proposed bill to exempt ports from interstate commerce laws has little chance of passing Congress anytime soon, according to Whalen.

Still, it pays to remain vigilant. The Teamsters are "rattling the sabers" at the state level, Whalen says, and court battles continue to be fought here and there. In New Jersey, the activities of motor carriers are specifically dictated by state law, a precedent that union leaders would love to apply nationwide. Warns Whalen: "I believe they will not quit their efforts." So watch out.

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